FIRST AMENDMENT TO CREDIT AND GUARANTY AGREEMENT
This FIRST AMENDMENT TO CREDIT AND GUARANTY AGREEMENT (this "AMENDMENT"),
dated as of June 14, 2007, is entered into by and among FOOTHILLS RESOURCES,
INC., a Nevada corporation ("COMPANY"), certain Subsidiaries of Company, as
Guarantors, the Lenders (as defined below) party hereto, ▇. ▇▇▇▇ & COMPANY ("▇.
▇▇▇▇"), as Lead Arranger and as Syndication Agent (in such capacities,
"SYNDICATION AGENT"), ▇. ▇▇▇▇, as Administrative Agent for the Lenders (together
with its permitted successor in such capacity, "ADMINISTRATIVE AGENT"), and as
counterparty to Company under the ISDA Agreement referred to below (in such
capacity, "LENDER COUNTERPARTY").
R E C I T A L S:
WHEREAS, Company, certain Subsidiaries of Company, Administrative Agent and
Lenders entered into that certain Credit and Guaranty Agreement dated as of
September 8, 2006 (as amended, supplemented, or restated to the date hereof, the
"ORIGINAL AGREEMENT"), for the purpose and consideration therein expressed,
whereby Lenders became obligated to make senior secured term loans to Company as
therein provided;
WHEREAS, Defaults and Events of Defaults now exist under the Credit
Agreement;
WHEREAS, Company and Lender Counterparty entered into that certain ISDA
Master Agreement dated as of September 8, 2006 (as amended, supplemented, or
restated to the date hereof, and together with all confirmations issued
thereunder, the "ISDA AGREEMENT");
WHEREAS, Company, certain Subsidiaries of Company, Administrative Agent and
Lenders desire to amend the Original Agreement as set forth herein; and
WHEREAS, Company has requested Lenders and Lender Counterparty to give the
waivers described herein;
NOW, THEREFORE, in consideration of the premises and the mutual covenants,
consents, waivers, and agreements contained herein and in the Original
Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto do hereby agree
as follows:
SECTION 1 DEFINITIONS AND REFERENCES
1.1. TERMS DEFINED IN THE ORIGINAL AGREEMENT. Unless the context otherwise
requires or unless otherwise expressly defined herein, the terms
defined in the Credit Agreement shall have the same meanings whenever
used in this Amendment.
1.2. OTHER DEFINED TERMS. Unless the context otherwise requires, the
following terms when used in this Amendment shall have the meanings
assigned to them in this Section 1.2.
"AMENDMENT" means this First Amendment to Credit Agreement.
"AMENDMENT DOCUMENTS" means this Amendment and all other Transaction
Documents executed and delivered in connection herewith.
"CREDIT AGREEMENT" means the Original Agreement as amended by this
Amendment.
"DESIGNATED DEFAULTS" means the following Defaults and Events of
Default of which the Company has notified the Administrative Agent and
that exist on the date of this Amendment under the Credit Agreement or
the ISDA Agreement (provided that the term "Designated Defaults" does
not include any future Defaults or Events of Default that occur after
the date of this Amendment, whether under the sections and subsections
listed below or otherwise):
(a) with respect to the Fiscal Quarter ending on March 31, 2007, (i)
Company failed to comply with the ratio of Consolidated
Indebtedness to EBITDA requirement set forth in Section 6.11 of
the Credit Agreement, and (ii) Company failed to comply with the
Interest Coverage Ratio requirement set forth in Section 6.19(b)
of the Credit Agreement.
(b) the Events of Default that occurred under the ISDA Agreement as a
result of the foregoing Events of Default under the Credit
Agreement.
(c) the additional Event of Default that occurred under Section
8.1(m) of the Credit Agreement as a result of the foregoing Event
of Default under the ISDA Agreement.
"RELEASED CLAIMS" means any and all actions, causes of action,
judgments, executions, suits, debts, claims, demands, controversies,
liabilities, obligations, damages and expenses of any and every
character (whether known or unknown, liquidated or unliquidated,
absolute or contingent, acknowledged or disputed, direct or indirect),
at law or in equity, of whatsoever kind or nature (including claims of
usury), whether heretofore or hereafter accruing, for or because of
any matter or things done, omitted or suffered to be done by any of
the Released Persons prior to and including the date hereof that in
any way directly or indirectly arise out of or in any way are
connected to (a) any of the Transaction Documents or the ISDA
Agreement or any default or event of default thereunder, (b) any
negotiation, discussion, enforcement action, agreement or failure to
agree related to any Transaction Document, the ISDA Agreement or any
default or event of default thereunder, or (c) any action, event,
occurrence, or omission otherwise related to the rights, duties,
obligations and relationships among the various Credit Parties,
Administrative Agent, Lenders, Royalty Owner, Warrant Owner, and
Lender Counterparty; provided, however, that "Released Claims" shall
not include any outstanding obligations owed as of the date of this
Agreement to Company by Lender Counterparty, or any affiliate thereof,
under the express terms of the ISDA Agreement.
"RELEASED PERSONS" means, Administrative Agent, Lenders, Royalty
Owner, Warrant Owner and Lender Counterparty, together with their
respective employees,
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agents, attorneys, officers, partners, shareholders, accountants,
consultants, directors, and Affiliates, and their respective
successors and assigns.
SECTION 2 AMENDMENTS TO ORIGINAL AGREEMENT
2.1. DEFINITIONS. Section 1.1 of the Original Agreement is hereby amended
to add a new definition there to in appropriate alphabetical order to
read as follows:
"DEDICATION RATE" means 100%; provided that Administrative Agent may
decrease such percentage in its sole discretion down to a percentage
not less than 75% with respect to the calculation of the payment due
pursuant to Section 2.11 on any Quarterly Payment Date.
2.2. ANCF Payment of Principal. Section 2.11 of the Original Agreement is
hereby amended and restated in its entirety to read as follows:
2.11 ANCF PAYMENT OF PRINCIPAL. On each Quarterly Payment Date,
Company shall make a principal payment in respect of the Loans in
an aggregate amount equal to the product of the Dedication Rate
multiplied by the Adjusted Net Cash Flow for the Calculation
Quarter applicable thereto, without premium or penalty.
2.3. FINANCIAL RATIOS. Section 6.11 of the Original Agreement is hereby
amended and restated in its entirety to read as follows:
6.11 FINANCIAL RATIOS.
(a) DEBT TO EBITDA RATIO. At the end of any Fiscal Quarter
ending on or after June 30, 2007, the ratio of (i) Company's
Consolidated Indebtedness at the end of such Fiscal Quarter
(plus, without duplication, all Consolidated balance sheet
liabilities of Company for plugging, abandonment,
remediation, and similar liabilities, but excluding any
Indebtedness resulting from the application of FASB
Statement 133 or 143), to (ii) Company's EBITDA for the
four-Fiscal Quarter period ending with such Fiscal Quarter,
will be equal to or less than the ratio set out in such
table opposite such Fiscal Quarter:
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FISCAL QUARTER MAXIMUM RATIO
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2nd Fiscal Quarter 2007 7.00 to 1.00
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3rd Fiscal Quarter 2007 6.30 to 1.00
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4th Fiscal Quarter 2007 5.00 to 1.00
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1st Fiscal Quarter 2008 3.75 to 1.00
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2nd Fiscal Quarter 2008 and thereafter 3.00 to 1.00
=======================================================================
(b) INTEREST COVERAGE RATIO. At the end of any Fiscal Quarter
ending on or after June 30, 2007, the ratio of (i) Company's
EBITDA for the four-Fiscal Quarter
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period ending with such Fiscal Quarter, to (ii) Interest
Expense, will be greater than or equal to the ratio set out
in such table opposite such Fiscal Quarter:
=======================================================================
FISCAL QUARTER MINIMUM RATIO
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2nd Fiscal Quarter 2007 0.90 to 1.00
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3rd Fiscal Quarter 2007 1.00 to 1.00
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4th Fiscal Quarter 2007 1.00 to 1.00
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1st Fiscal Quarter 2008 1.50 to 1.00
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2nd Fiscal Quarter 2008 2.00 to 1.00
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3rd Fiscal Quarter 2008 and thereafter 2.50 to 1.00
=======================================================================
Such ratios with respect to the Fiscal Quarter ending June 30, 2007
shall be calculated using "ANNUALIZED EBITDA" and "ANNUALIZED INTEREST
EXPENSE". For purposes of this Section 6.11, (a) "ANNUALIZED EBITDA"
means with respect to the Fiscal Quarter ending June 30, 2007, EBITDA
for the period commencing on October 1, 2006 through June 30, 2007
multiplied by 4/3, and (b) "ANNUALIZED INTEREST EXPENSE" means with
respect to the Fiscal Quarter ending June 30, 2007, Interest Expense
for the period commencing on October 1, 2006 through June 30, 2007
multiplied by 4/3.
2.4. ADDITIONAL FINANCIAL COVENANTS. Section 6.19 of the Original Agreement
is hereby deleted in its entirety.
SECTION 3 LIMITED WAIVERS
Company has requested that Administrative Agent, Lenders and Lender
Counterparty waive (i) the Designated Defaults, (ii) the accrual of interest on
the outstanding principal amount of the Loans at the Post-Default Rate due to
the occurrence of the Designated Defaults, and (iii) the reduction of the
Permitted G&A Expense Amount by $62,500 for any month during which the
Designated Defaults existed, as provided by the definition thereof, and
Administrative Agent, Lenders and Lender Counterparty have agreed to do so on
the terms set forth herein. Accordingly, subject to the conditions and
limitations set forth herein, and the agreements of Company contained herein,
Administrative Agent, Lenders and Lender Counterparty hereby waive (i) the
Designated Defaults, (ii) the accrual of interest on the outstanding principal
amount of the Loans at the Post-Default Rate due to the occurrence of the
Designated Defaults (but only due to the occurrence of the Designated Defaults),
and (iii) the reduction of the Permitted G&A Expense Amount by $62,500 for any
month during which the Designated Defaults existed (but only due to the
occurrence of the Designated Defaults).
SECTION 4 CONDITIONS OF EFFECTIVENESS
4.1. EFFECTIVE DATE. The effectiveness of this Amendment as of the date
first above is subject to the satisfaction, or waiver in accordance
with Section 10.5 of the Credit Agreement, of the following
conditions:
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(a) AMENDMENT DOCUMENTS. Administrative Agent shall have received
counterparts of each Amendment Document originally executed and
delivered by each applicable Credit Party and in such numbers as
Administrative Agent or its counsel may reasonably request.
(b) OFFICER'S CERTIFICATE. Administrative Agent shall have received a
certificate of the president and secretary of each Credit Party
certifying as of the date of this Amendment (i) that there have
been no changes to the Organizational Documents of such Credit
Party since the Closing Date, (ii) the resolutions of such Credit
Party approving this Amendment, the other Amendment Documents and
the related transactions, and (iii) the signature and incumbency
certificates of the officers of such Credit Party.
(c) CLOSING CERTIFICATE. Company shall have delivered to
Administrative Agent an originally executed Closing Certificate
in the form attached hereto as Exhibit A, appropriately
completed.
(d) GOOD STANDING CERTIFICATES. Administrative Agent shall have
received a good standing certificate from the applicable
Governmental Authority of each Credit Party's jurisdiction of
incorporation, organization or formation, each dated a recent
date prior to the effective date of this Amendment.
(e) FEES. Company shall have paid all fees and expenses as required
by Section 10.2 of the Credit Agreement.
(f) COMPLETION OF PROCEEDINGS. All corporate, partnership, limited
liability company, and other proceedings taken or to be taken in
connection with the transactions contemplated hereby and all
documents incidental thereto not previously found acceptable by
Administrative Agent and its counsel shall be reasonably
satisfactory in form and substance to Administrative Agent and
such counsel, and Administrative Agent and such counsel shall
have received all such counterpart originals or certified copies
of such documents as Administrative Agent may reasonably request.
(g) DUE DILIGENCE. Administrative Agent and Lenders shall have
completed satisfactory due diligence review of the assets,
liabilities, business, operations and condition (financial or
otherwise) of Company and its Subsidiaries, including, a review
of their Oil and Gas Properties and all legal, financial,
accounting, governmental, environmental, tax and regulatory
matters, and fiduciary aspects of the proposed financing.
(h) OTHER DOCUMENTATION. Administrative Agent shall have received all
documents and instruments which Administrative Agent has then
reasonably requested, in addition to those described in this
Section 4.1. All such additional documents and instruments shall
be reasonably satisfactory to Administrative Agent in form,
substance and date.
(i) NO DEFAULT. No event shall have occurred and be continuing that
would constitute an Event of Default or a Default (other than the
Designated Defaults).
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SECTION 5 REPRESENTATIONS AND WARRANTIES
5.1. REPRESENTATIONS AND WARRANTIES OF COMPANY. In order to induce
Administrative Agent and each Lender to enter into this Amendment,
each Credit Party represents and warrants to Administrative Agent and
each Lender that, after giving effect to the waivers of the Designated
Defaults provided for herein:
(a) The representations and warranties contained in Section 4 of the
Original Agreement are true and correct in all respects at and as
of the time of the effectiveness hereof, except to the extent
such representations and warranties specifically relate to an
earlier date, in which case such representations and warranties
shall have been true and correct in all respects on and as of
such earlier date.
(b) Each Credit Party has duly taken all company action necessary to
authorize the execution and delivery by it of the Amendment
Documents to which it is a party and to authorize the
consummation of the transactions contemplated thereby and the
performance of its obligations thereunder. Company is duly
authorized to borrow funds under the Credit Agreement.
(c) The execution and delivery by the various Credit Parties of this
Amendment and each of the other Amendment Documents, the
performance by each of its obligations hereunder and thereunder
and the consummation of the transactions contemplated hereby and
thereby do not and will not (i) conflict with any provision of
(A) any Law, (B) the Organizational Documents of any Credit
Party, or (C) any agreement, judgment, license, order or permit
applicable to or binding upon any Credit Party, (ii) result in
the acceleration of any Indebtedness owed by any Credit Party, or
(iii) result in or require the creation of any Lien upon any
assets or properties of any Credit Party except as expressly
contemplated in the Transaction Documents. Except as expressly
contemplated in the Transaction Documents no consent, approval,
authorization or order of, and no notice to or filing with, any
Governmental Authority or third party is required in connection
with the execution, delivery or performance by any Credit Party
of any Amendment Document or to consummate any transactions
contemplated by the Amendment Documents.
(d) This Agreement and the other Amendment Documents are legal, valid
and binding obligations of each Credit Party which is a party
hereto or thereto, enforceable in accordance with their terms
except as such enforcement may be limited by bankruptcy,
insolvency or similar Laws of general application relating to the
enforcement of creditors' rights and by general principles of
equity.
(e) The audited annual Consolidated financial statements of Company
dated as of December 31, 2006 and the unaudited quarterly
Consolidated financial statements of Company dated as of March
31, 2007 fairly present the Consolidated financial position at
such dates and the Consolidated statement of operations and the
changes in Consolidated financial position for the periods ending
on such dates for Company. Copies of such financial statements
have heretofore been delivered to each Lender. Since such dates
no Material Adverse Effect has occurred in the financial
condition or businesses or in the Consolidated financial
condition or businesses of Company.
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(f) The Credit Parties have no deposit accounts, savings accounts or
other accounts of any kind with any financial institution other
than the following:
(i) deposit accounts number __________ established in the name
of Company with ▇▇▇▇▇ Fargo Bank, N.A.
(ii) deposit account number __________ established in the name of
Company with ▇▇▇▇▇ Fargo Bank, N.A.
(iii) deposit account number __________ established in the name
of Company with ▇▇▇▇▇ Fargo Bank, N.A.
(iv) deposit account number __________ established in the name of
Company with ▇▇▇▇▇ Fargo Bank, N.A.
SECTION 6 MISCELLANEOUS
6.1. RATIFICATION; ACKNOWLEDGMENTS; NO WAIVER.
(a) RATIFICATION. The Original Agreement as hereby amended is hereby
ratified and confirmed in all respects. The ISDA Agreement is
hereby ratified and confirmed in all respects. The Transaction
Documents, as they may be amended or affected by the various
Amendment Documents, are hereby ratified and confirmed in all
respects. Any reference to the Credit Agreement in any
Transaction Document shall be deemed to be a reference to the
Original Agreement as hereby amended. The execution, delivery and
effectiveness of this Amendment and the other Amendment Documents
shall not, except as expressly provided herein or therein,
operate as a waiver of any right, power or remedy of Lenders
under the Credit Agreement, the Notes, the ISDA Agreement or any
other Transaction Document nor constitute a waiver of any
provision of the Credit Agreement, the Notes, the ISDA Agreement,
or any other Transaction Document. In particular, and without
limitation, (i) each Guarantor ratifies and confirms its
obligations under Section 7 of the Credit Agreement and agrees
that all of its respective obligations and covenants thereunder
shall remain unimpaired by the execution and delivery of this
Amendment and the other Amendment Documents, and (ii) Company
ratifies and confirms the letter agreement referred to in Section
2.9 of the Credit Agreement and acknowledges and agrees that such
letter agreement has not been waived in any respect and that fees
will be owing thereunder in connection with any Credit Extensions
made after the date hereof.
(b) ACKNOWLEDGMENT OF DESIGNATED DEFAULTS. Company hereby
acknowledges and agrees that the Designated Defaults have
occurred and are continuing prior to the effectiveness of this
Amendment and that the waiver thereof by Lenders and Lender
Counterparty, together with the other agreements and consents in
this Amendment, constitutes valuable and sufficient consideration
for Company's execution and performance of this Amendment.
Company further represents and warrants that, as of the date
hereof and after giving effect to the waivers of the Designated
Defaults set forth in this Amendment, no Defaults or Events of
Default exist under the Transaction Documents.
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(c) NO WAIVER. Administrative Agent and Lenders require and will
require strict performance by Company and each other party to any
Transaction Document of all of their respective obligations,
agreements and covenants contained in the Credit Agreement, the
ISDA Agreement, and the other Transaction Documents, and no
inaction or action regarding any such breach is intended to be or
shall be a waiver thereof. In no event and under no circumstance
shall any past or future discussions with Administrative Agent or
Lenders and/or Administrative Agent's or any Lender's forbearance
from exercising any of its rights or remedies under the Credit
Agreement, the ISDA Agreement, or the other Transaction
Documents: (i) cause a modification thereof; (ii) establish a
custom with respect thereto; (iii) operate as a waiver of any
existing or future default or event of default thereunder; (iv)
entitle any Credit Party to any other or further notice or demand
whatsoever; (v) in any way modify, change, impair, affect,
diminish or release any Credit Party's obligations or liability
under or pursuant to the Transaction Documents or any other
liability it may have to Administrative Agent, Lender
Counterparty or any Lender; or (vi) waive, limit or condition
Administrative Agent's or any Lender's rights and remedies under
the Credit Agreement, the ISDA Agreement, or the other
Transaction Documents, all of which rights and remedies are
expressly reserved.
6.2. SURVIVAL OF AGREEMENTS. All representations, warranties, covenants and
agreements of the Credit Parties herein shall survive the execution
and delivery of this Amendment and the other Amendment Documents and
the performance hereof and thereof, including without limitation the
making or granting of the Loans, and shall further survive until all
of the Obligations are paid in full. All statements and agreements
contained in any certificate or instrument delivered by any Credit
Party hereunder or under the Credit Agreement to any Lender shall be
deemed to constitute representations and warranties by, and/or
agreements and covenants of, Company under this Amendment and under
the Credit Agreement.
6.3. RESERVED.
6.4. RELEASE OF CLAIMS. TO INDUCE ADMINISTRATIVE AGENT, LENDERS, AND LENDER
COUNTERPARTY TO AGREE TO THE TERMS OF THIS AMENDMENT, EACH CREDIT
PARTY HEREBY (A) REPRESENTS AND WARRANTS THAT, AS OF THE DATE OF THIS
AMENDMENT, THERE ARE NO CLAIMS OR OFFSETS AGAINST OR DEFENSES OR
COUNTERCLAIMS TO ITS OBLIGATIONS UNDER THE TRANSACTION DOCUMENTS OR
UNDER THE ISDA AGREEMENT, AND WAIVES ANY AND ALL SUCH CLAIMS, OFFSETS,
DEFENSES, OR COUNTERCLAIMS, WHETHER KNOWN OR UNKNOWN, ARISING PRIOR TO
THE DATE OF THIS AGREEMENT, (B) RELEASES AND FOREVER DISCHARGES THE
RELEASED PERSONS FROM ANY AND ALL RELEASED CLAIMS, AND (C) COVENANTS
NOT TO ASSERT (AND NOT TO ASSIST OR ENABLE ANY OTHER PERSON TO ASSERT)
ANY RELEASED CLAIM AGAINST ANY RELEASED PERSON. THE CREDIT PARTIES
ACKNOWLEDGE AND AGREE THAT SUCH RELEASE IS A GENERAL RELEASE OF ANY
AND ALL RELEASED CLAIMS THAT CONSTITUTES A FULL AND COMPLETE
SATISFACTION FOR ALL OR ANY ALLEGED INJURIES OR DAMAGES ARISING OUT OF
OR IN CONNECTION WITH THE RELEASED CLAIMS, ALL OF WHICH ARE HEREIN
COMPROMISED AND SETTLED.
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6.5. REVIEWED BY ATTORNEYS. Each Credit Party represents and warrants to
Administrative Agent and each Lender that it (a) understands fully the
terms of this Amendment and the other Amendment Documents and the
consequences of the execution and delivery hereof and thereof, (b) has
been afforded an opportunity to have this Amendment and the other
Amendment Documents reviewed by, and to discuss this Amendment and the
other Amendment Documents with, such attorneys and other persons as
Company may wish, and (c) has entered into this Amendment and the
other Amendment Documents of its own free will and accord and without
threat, duress or other coercion of any kind by any Person. The
parties hereto acknowledge and agree that neither this Amendment nor
the other Amendment Documents shall be construed more favorably in
favor of one than the other based upon which party drafted the same,
it being acknowledged that all parties hereto contributed
substantially to the negotiation and preparation of this Amendment and
the other Amendment Documents.
6.6. TRANSACTION DOCUMENTS. This Amendment and the other Amendment
Documents are each a Transaction Document, and all provisions in the
Credit Agreement pertaining to Transaction Documents apply hereto and
thereto.
6.7. SEVERABILITY. In case any provision in or obligation hereunder or any
shall be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby.
6.8. HEADINGS. Section headings herein are included herein for convenience
of reference only and shall not constitute a part hereof for any other
purpose or be given any substantive effect.
6.9. APPLICABLE LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF.
6.10. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be
deemed an original, but all such counterparts together shall
constitute but one and the same instrument.
THIS AMENDMENT, THE OTHER TRANSACTION DOCUMENTS, AND THE ISDA AGREEMENT
REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS OF THE PARTIES.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
COMPANY:
FOOTHILLS RESOURCES, INC.
By: /s/ W. ▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------
W. ▇▇▇▇ ▇▇▇▇▇▇
Secretary and Chief Financial Officer
GUARANTORS:
FOOTHILLS CALIFORNIA, INC.
By: /s/ W. ▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------
W. ▇▇▇▇ ▇▇▇▇▇▇
Secretary and Chief Financial Officer
FOOTHILLS OKLAHOMA, INC.
By: /s/ W. ▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------
W. ▇▇▇▇ ▇▇▇▇▇▇
Secretary and Chief Financial Officer
FOOTHILLS TEXAS, INC.
By: /s/ W. ▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------
W. ▇▇▇▇ ▇▇▇▇▇▇
Secretary and Chief Financial Officer
▇. ▇▇▇▇ & COMPANY,
as Lead Arranger, Syndication Agent,
Administrative Agent, a Lender, and Lender
Counterparty
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------------
Authorized Signatory
EXHIBIT A TO
FIRST AMENDMENT
CLOSING CERTIFICATE
June __, 2007
THE UNDERSIGNED HEREBY CERTIFY AS FOLLOWS:
1. We are, respectively, the chief executive officer and the chief
financial officer of FOOTHILLS RESOURCES, INC., a Nevada corporation
("COMPANY").
2. We have reviewed the terms of the Credit and Guaranty Agreement, dated
as of September 8, 2006 (as it may be amended, supplemented or otherwise
modified to the date hereof, the "CREDIT AGREEMENT"; the terms defined therein
and not otherwise defined herein being used herein as therein defined), by and
among Company, certain subsidiaries of Company, as Guarantors, the Lenders party
thereto from time to time, ▇. ▇▇▇▇ & COMPANY, as Lead Arranger and Syndication
Agent, and ▇. ▇▇▇▇ & COMPANY, as Administrative Agent, which is being amended by
the First Amendment to Credit and Guaranty Agreement dated as of the date hereof
(the "AMENDMENT DATE") by and among Company, certain subsidiaries of Company,
Administrative Agent, and Lenders.
3. In our opinion we have made, or have caused to be made under our
supervision, such examination or investigation as is necessary to enable us to
express an informed opinion as to the matters referred to herein.
4. Based upon our review and examination described in paragraph 3 above, we
certify, on behalf of Company, that as of the date hereof and after giving
effect to the waivers set forth in the First Amendment to Credit Agreement
referred to above:
(i) as of the Amendment Date, the representations and warranties
contained in each of the Transaction Documents are true and
correct in all respects on and as of the Amendment Date to the
same extent as though made on and as of such date, except to the
extent such representations and warranties specifically relate to
an earlier date, in which case such representations and
warranties are true and correct in all respects on and as of such
earlier date;
(ii) as of the Amendment Date, no injunction or other restraining
order shall have been issued and no hearing to cause an
injunction or other restraining order to be issued is pending or
noticed with respect to any action, suit or proceeding seeking to
enjoin or otherwise prevent the consummation of, or to recover
any damages or obtain relief as a result of, the transactions
contemplated by the First Amendment; and
(iii) as of the Amendment Date, no event has occurred and is
continuing or would result from the consummation of the
transactions contemplated by the First Amendment that would
constitute an Event of Default or a Default.
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The foregoing certifications are made and delivered as of the date first
written above.
FOOTHILLS RESOURCES, INC.
By: /s/ ▇▇▇▇▇▇ ▇. Tower
---------------------------------------------
▇▇▇▇▇▇ ▇. Tower
Chief Executive Officer
By: /s/ W. ▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------------
W. ▇▇▇▇ ▇▇▇▇▇▇
Secretary and Chief Financial Officer